Claim: Lincoln County aims to bankrupt Greentree

Consultant says county squeezing revenues sources

By their actions, Lincoln County officials seem out to bankrupt Greentree Solid Waste Authority, a consultant with the garbage collection coalition contends.

He said some county officials have attempted to control the revenue sources of Greentree by locking up a $200,000 landfill operation refund in a debt service fund that cannot be used for operation, by not ratifying a rate increase approved by the Greentree board and by not moving forward on liens that need to be filed to collect substantial overdue bills.

"They have done numerous other acts to impede us, but it's not working," said Joe Lewandowski, who has established 16 solid waste authorities across New Mexico. "(Greentree) is making adjustments and will continue. I hope at some point the county will sit down and talk about resolutions."

The major breaking point began with when 1,100 homes in Alto Lakes were allowed by county action to withdraw from the authority, no longer sharing the debt on a new garbage transfer and recycling center, trucks, compactors and other equipment, and the responsibility for continued closure obligations over the next 30 years of the Capitan debris landfill, he said.

"That then means everybody else must pay more," Lewandowski said. "Twenty-five percent of county billing was allowed to withdraw without resolution. Greentree's position is that is not fair to everyone else. The county's position is they can do it."

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Lewandowski was responding to an article in the Ruidoso News based on actions of the county commission at a meeting last month, during which commissioners nixed moving forward on filing of several liens and took a stance on how to handle a $200,000 refund of money in excess of the operational needs of the Otero-Greentree Regional Landfill south of Alamogordo.

"Greentree officials still are willing to sit down and resolve all the issues," Lewandowski said. "We truly believe what we believed two years ago, that these (joint powers agreements) need to be cleaned up. It's not just about Alto, it's lets get the agreements boiled down from 22 to one or two that relate to what we are doing today so future people don't have to go through what we are going through now. Numerous times we have requested a face-to-face. We have even showed up after calling a special meeting of the Greentree board at their (special) meeting (in Ruidoso). We said we are here to talk and they would not talk to us. Their thought was because there was a lawsuit going on, but that's what the term 'settle out of court' means. When the other party won't talk, you have to ask the question why."

Refund comes to owners

"The landfill 18 months ago declared we had excess revenue, which is allowed under the joint powers agreement to be refunded back to the owners, of which there are two, the Otero Solid Waste Authority and the Greentree Solid Waste Authority," Lewandowski said. "(The agreement that County Manager Nita Taylor) is referencing for an even split of the money between the members is the JPA between the six members of the Lincoln County group, the Greentree SWA. It's the amendment passed when Ruidoso pulled out (of the garbage collection portion of the authority).

"There are only two members of the landfill. There are 10 members of the two groups, but they individually don't own (the landfill). Ruidoso never left, they just changed their relationship with Greentree. Anyone can, even the county."

The difference between the two JPAs has been explained on several occasions at Greentree meetings, landfill meetings and to the county commission, the consultant said. But commissioners still don't seem to understand the difference, he said.

"The county is claiming that the amount paid to the Greentree group is to be divided among the six owners at $33,333," he said. However, when commissioners approved the JPA amendment for the refund, they initially stipulated the money had to go into debt service, but switched to equal distribution after the money was sent to Greentree without stipulation based on a vote of the two owners.

When the landfill was built, ownership was split 50-50 percent between Otero and Greentree, not proportionate based on use of the landfill, Lewandowski said. At the time, no one dreamed government entities would be giving money back, he said. Today, that arrangement didn't seen fair and he advocated for a proportionate distribution of the refund between the two, which benefitted Otero, he said.

"It's sad such a successful thing is being twisted into such a nasty thing," he said. "We made a determination two years ago that we should give back $400,000 to the owners and they could decide how to disperse the funds. The two (SWA) boards voted to do it."

But to amend a JPA, each of the members, plus the two owners were to sign off, he said. All of the Otero County entities quickly agreed and most of those in Lincoln County followed, except for the county commission and the city of Ruidoso Downs, which wanted some clarifications about service and rates.

"The county for many months refused to even put it on the agenda," Lewandowski said. When a vote occurred, the commission dictated to the other five member communities that all the money would have to go to debt service, he said. The debt service fund already is serviced adequately by a environmental gross receipt tax, he said. Putting the refund money into that account would have locked up use of the refund and it could not be used to pay operational bills, he said.

Because the existing JPA already allowed the refund to come directly to the two owners, Otero and Greentree voted to make the refund proportionate by first distributing $200,000 to each and then having Greentree refund the appropriate amount to Otero County.

"No one hesitated, including (Mark Doth, the county's representative on the landfill board) and it was approved to be proportionate and to amend the JPA," Lewandowski said. "The dispute came when the money actually was available and it became a pawn in whole game going on. The county wasn't happy, because Greentree got the money with no restrictions and it went into operational account to fix trucks and other things. Some probably will be refunded to Ruidoso. Now it became a local issue of the six members."

With Greentree being the garbage hauler for several municipalities and much of the unincorporated area of the county, the question is if checks should be written to individual members of Greentree or be used to pay bills for the authority. If checks are written to members, rates may have to be adjusted, Lewandowski said.

Filing liens

Under a memorandum of understanding, the authority has been the garbage service billing agent for the county since it was formed. Part of the agreement is to collect the money when people don't pay their bills, the consultant said. Eventually with nonpayment, liens are filed in a procedures used all over the state.

The county attorney pointed out a few issues connected to the last batch of liens, issues that Lewandowski said could have been resolved with a telephone call or a request for backup before the meeting when they were rejected.

"We have detailed records for every account," he said. That includes proof of mailing. The same procedure has been followed for 20 years, he said. But if a problem exists, it can easily be corrected. Instead of making adjustments, commissioners just stopped the lien process, he said.

"That means the cost of providing garbage service still is out there and the cost to others who pay their bills will go up, because we're not collecting from those who should be paying," Lewandowski said. "Why would the county want to impede the process of ensuring all pay? Usually, within days or weeks after filing liens, we get big checks from individuals or from banks holding the mortgages, because they don't want liens on property. This stops part of the cash flow to the authority."

As for the county attorney saying an incorrect ordinance was referenced on the liens, that would be another easy correction, Lewandowski said.

The last criticism dealt with difference in the late fees charged. The consultant said the authority board can waive late fees, but not penalties and interest, if a customers agreed to a settlement of a bill, a standard practice across the state.

"Some did come in and set up payment plans," he said. But some customers failed to follow through and what they owed had to be recalculated with new late fees and penalties, he said.

Rate hearing

When Greentree asked for a rate hearing that didn't automatically mean new rates would be approved, Lewandowski said. The hearing would have given members, authority officials and commissioners a chance to discuss levels of service, rates and adjustments.

"The county has refused to give us the opportunity to even discuss it," he said.

When Greentree asked the district court two years ago for a declaratory judgment, board members hoped a judge would rule on major issues of disagreement, including how to set rates and about districts walking away without obligations, and that the judge would interpret agreements,

"We asked the court to tell us what 20 years of documents said," he said. "We thought to let the judge study them and decide. That's all Greentree wanted and asked for (initially). The judge would come back and say this what this said and this is your relationship. Then it is law and no longer an attorney's opinion, a manager's opinion or a consultant's opinion."